Citation Nr: 1045511
Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 09-36 493 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Arkansas Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The Veteran served on active duty from March 1970 to April 1971
but only his period of service from March 1970 to July 1970 is
qualifying service.
This matter comes before the Board of Veterans' Appeals (Board)
from a March 2009 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.
In June 2010, the Veteran testified at a videoconference hearing
conducted before the undersigned Acting Veterans Law Judge. A
copy of the transcript of that hearing has been associated with
the claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran if
further action is required.
REMAND
A review of the record on appeal reveals that in a decision dated
on "6-22-08" the RO found that the circumstances surrounding
the Veteran's July 1970 assault on a fellow service member and
subsequent incarceration constitute willful misconduct. However,
a review of the record on appeal does not reveal that the RO
mailed the Veteran notice of this decision. See 38 C.F.R.
§ 19.25 (2010). Therefore, the "6-22-08" decision is not
final. See 38 U.S.C.A. § 7105 (2010).
The Board finds that whether or not the events surrounding the
Veteran's July 1970 assault on a fellow service member and
subsequent incarceration constitute willful misconduct are
inextricably intertwined with his current claim of service
connection for PTSD. The Board has reached this conclusion
because, in writings to the RO and at the recent videoconference
hearing, the Veteran alleged, in substance, that his PTSD was
caused by being assaulted by military police officers after his
July 1970 assault. See 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303, 3.304(f) (2010).
Accordingly, because the recent willful misconduct decision is
inextricably intertwined with the current claim of service
connection for PTSD, the Board finds that adjudication of the
current appeal must be held in abeyance until the Veteran
receives notice of the willful misconduct decision and either
appeals that decision or it becomes final. See Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is
inextricably intertwined with another claim, the claims must be
adjudicated together in order to enter a final decision on the
matter); Also see 38 U.S.C.A. §§ 5108, 5109A, 7105 (West 2002);
38 C.F.R. § 3.105 (2010) (holding that RO decisions which are not
timely appealed are considered final and binding in the absence
of new and material evidence to reopen the claim or a showing of
clear and unmistakable error (CUE)); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (where the law and not the evidence
is dispositive, the Board should deny the claim on the ground of
lack of legal merit).
As to the claim of service connection for PTSD, the Board also
notes that the record includes a January 2009 print-out from the
RO documenting the fact that the Veteran has been in receipt of
Social Security Administration (SSA) disability benefits since
June 2002. However, these records do not appear in the claim's
file. Therefore, while the appeal is in remand status, the
Veteran's SSA records should be obtained and associated with the
claim's file. See 38 U.S.C.A. § 5103A(b) (West 2002); Murincsak
v. Derwinski, 2 Vet. App. 363 (1992) (holding that medical
records upon which an award of SSA disability benefits has been
predicated are relevant to VA claims for service connection and
an increased rating).
Accordingly, the appeal is REMANDED to the RO/AMC for the
following actions:
1. The RO/AMC must mail the Veteran notice
of the "6-22-08" decision which found that
the circumstances surrounding his July 1970
assault on a fellow service member and
subsequent incarceration constitute willful
misconduct. A copy of the notice letter must
be placed in the Veteran's claims file.
[This issue should only be returned to the
Board if the Veteran perfects a timely appeal
of the decision.]
2. The RO/AMC should obtain and associate
with the claims folder copies of any SSA
decision awarding disability benefits to the
Veteran as well as the records used in
support of any such determination. Efforts
to obtain the requested records should be
ended only if it is concluded that the
records sought do not exist or that further
efforts to obtain those documents would be
futile. All actions to obtain the requested
records should be documented fully in the
claim's file. Thereafter, the Veteran should
be notified in writing if the records are
unavailable. Because these are Federal
records, if they cannot be located or no such
records exist, a memorandum of unavailability
must be associated with the claim's file and
the Veteran should be provided with a copy of
that memorandum.
3. Then, the RO/AMC should readjudicate the
claim for service connection for PTSD. If
the benefit sought on appeal remains denied,
the RO/AMC should provide the Veteran and his
representative with a supplemental statement
of the case (SSOC) and given a reasonable
period of time to respond. The case should
then be returned to the Board for further
appellate consideration, if otherwise in
order.
The appellant has the right to submit additional evidence and
argument on the matter that the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by the
Court for additional development or other appropriate action must
be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2009).
_________________________________________________
THERESA M. CATINO
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the nature
of a preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(2010).